Социальная история российского права и возможность верховенства права в России

Сравнительное конституционное обозрение. 2022. № 6. С. 132–168.

Fogelson Y. B.

Citizens' trust in their legal system is central to the rule of law. This article continues the study of the social history of law and its influence on trust in law in various societies, begun in our joint with D.Yu. Poldnikov's article on the social history of various legal systems. Here the social history of Russian law as the right of power is studied and it is shown that the standard model of Russian legal consciousness, called "legal nihilism", is erroneous. Indeed, Russian citizens do not have real trust in law, but there is also no “nihilistic” attitude towards it either. The entire history of the interaction of Russian society and Russian law has developed a utilitarian attitude towards law among Russian citizens, and they should rather be called “legal utilitarians”, since they willingly used and now use the law when they consider it beneficial for themselves, and bypass it in those cases when they consider themselves unprofitable. Therefore, the main task of any future reform of the legal system (and such reform is obviously needed) is to make it so that following the rule of law for the majority of citizens is considered more beneficial than breaking the rule of law. This can be achieved if two conditions are met: a) a group of people must appear in society for whom the rule of law is beneficial; b) a mechanism should be created to protect society from the influence of those groups for which it is beneficial to break the law. A group of people for whom the rule of law is beneficial has already appeared: these are lawyers independent of the authorities. For them, a law-enforced society provides a market for their services; the well-being of this group of people literally depends on whether laws are observed in a society. Creating a mechanism to protect against the influence of those groups that benefit from the violation of the law is a serious problem to be solved in the reform of the legal system.

Keywords: верховенство права, social norms, социальные нормы, правовой дуализм, российские юристы, rule of law, legal dualism, право власти, law of the authorities, comparative social history of law in Russia, Russian lawyers, сравнительная социальная история права в России